851 F.

2d 7

UNITED STATES, Appellee,

v.
Roger R. PLOOF, a/k/a George Godin, Defendant, Appellant.
No. 88-1505.

United States Court of Appeals,

First Circuit.
July 7, 1988.

Jeffrey M. Smith, Boston, Mass., on memorandum in support of appeal

and request for release, for defendant, appellant.
Kevin E. Sharkey, Concord, N.H., on memorandum in opposition thereof,
for appellee.
Before CAMPBELL, Chief Judge, COFFIN and SELYA, Circuit Judges.
LEVIN H. CAMPBELL, Chief Judge.

Defendant appeals from the order directing his detention pending trial. We
review the background.

Defendant was indicted for conspiracy to make false statements on a mortgage

loan application, 18 U.S.C. Secs. 1014, 656; making false statements to a
national bank, 18 U.S.C. Sec. 1014; wilful misapplication of bank funds, 18
U.S.C. Sec. 656; and bank fraud, 18 U.S.C. Sec. 1344. Three criminal
complaints charging a narcotics offense, interstate transportation of stolen
property, and unlawful structuring of a financial transaction were also filed. On
the government's motion, a detention hearing was held. Based on the evidence,
the magistrate concluded that while conditions of release could reasonably
assure defendant's presence at trial, there was no condition or combination of
conditions of release which would reasonably assure the safety of other persons
and the community if the defendant were released. The magistrate stated that
the government had proven by clear and convincing evidence that during the
period August to October 1987, defendant had plotted at length first to injure
and then to kill his girlfriend's husband. The girlfriend and her husband at that

time were involved in divorce proceedings. The magistrate concluded from this
that defendant was a dangerous person who "appears to have no qualms about
planning criminal acts and taking steps to protect himself from being associated
with the crimes afterwards." In view of defendant's apparent ruthlessness, the
magistrate could not find any conditions which would reasonably assure that
defendant would not be a danger to persons who had crossed him. The
magistrate rejected counsel's suggestion that anyone who had had anything
damaging to say about defendant to law enforcement officials had already said
it and that hence there was no longer anyone defendant would want to harm.
The magistrate pointed out that defendant had plotted against his girlfriend's
husband after the husband had already talked to law enforcement officials.
Consequently, the magistrate ordered defendant detained.
3

Defendant moved to revoke the detention order. The district court, after
conducting a de novo review, concluded in part as follows:

4
"[T]he
government has proven by clear and convincing evidence that no condition or
set of conditions will ensure the safety of [the girlfriend's husband] or the
community."
5

The court felt defendant's activities with respect to the husband "strongly
suggest[ ] that [defendant] might intimidate witnesses in this and other criminal
proceedings thus obstructing justice and endangering the safety of potential
witnesses and the community." The court did not state, and it is not clear,
whether the girlfriend's husband is likely to be a witness in the present case.

On appeal, defendant has several arguments. He points to the district court

finding that the government had proven "no condition or set of conditions will
ensure the safety of ... the community" and notes that the statute speaks in
terms of whether any conditions "will reasonably assure ... the safety of ... the
community." 18 U.S.C. Sec. 3142(f) (emphasis added). In view of the district
court's omission of the word "reasonably," defendant argues the court imposed
the wrong standard: the court refused to release him because there was no
absolute certainty that defendant's release would not endanger the community,
whereas the statute only calls for a reasonable assurance of safety. Second, and
apart from the foregoing alleged error, defendant argues that preventive
detention on the ground of dangerousness to the community is not statutorily
authorized in the circumstances of this case. In short, defendant's argument is
that preventive detention cannot be ordered whenever a defendant could
reasonably be perceived as a danger to another person or to the community. To
put the matter starkly, even if defendant is indeed a clear danger to the
girlfriend's husband in what, defendant says, is an unrelated domestic relations

matter, that does not warrant detention on the present charges. Rather, release
can be denied on dangerousness grounds alone only when a person is charged
with one of the crimes enumerated in 18 U.S.C. Sec. 3142(f)(1)(A) through
(D). We turn to this latter statutory argument first.
7

The Bail Reform Act directs the judicial officer to order pretrial release on
personal recognizance or upon the execution of an unsecured appearance bond
"unless the judicial officer determines that such release will not reasonably
assure the appearance of the person as required or will endanger the safety of
any other person or the community." 18 U.S.C. Sec. 3142(b). If the preceding
terms will not reasonably assure appearance or will endanger safety, then the
judicial officer is directed to consider a number of conditions to be attached to a
release order. 18 U.S.C. Sec. 3142(c). Only "[i]f, after a hearing pursuant to
[Sec. 3142(f) ], the judicial officer finds that no condition or combination of
conditions will reasonably assure the appearance of the person as required and
the safety of any other person and the community," shall the judicial officer
order detention. Sec. 3142(e). Section 3142(f), which is central to the present
appeal, in turn specifies certain conditions under which a detention hearing
shall be held. Defendant now argues that while Sec. 3142(e) speaks in terms of
detaining a person on dangerousness grounds, such a detention can only be
ordered after a hearing in accordance with Sec. 3142(f), and the grounds set out
in that section limit a dangerousness finding to instances of the kind listed
therein.

Section 3142(f) provides in material part as follows:

9 Detention hearing. The judicial officer shall hold a hearing to determine whether
(f)
any condition or combination of conditions set forth in subsection (c) of this section
will reasonably assure the appearance of the person as required and the safety of any
other person and the community-10

(1) upon motion of the attorney for the Government, in a case that involves--

11

(A) a crime of violence;(B) an offense for which the maximum sentence is life
imprisonment or death;

12

(C) an offense for which a maximum term of imprisonment of ten years or

more is prescribed in the Controlled Substances Act (21 U.S.C. 801 et seq.), the
Controlled Substances Import and Export Act (21 U.S.C. 951 et seq.), or
section 1 of the Act of September 15, 1980 (21 U.S.C. 955a); or
(D) any felony if the person has been convicted of two or more offenses

13

(D) any felony if the person has been convicted of two or more offenses
described in subparagraphs (A) through (C) of this paragraph, or two or more
State or local offenses that would have been offenses described in
subparagraphs (A) through (C) of this paragraph if a circumstance giving rise to
Federal jurisdiction had existed, or a combination of such offenses; or

14

(2) upon motion of the attorney for the Government or upon the judicial
officer's own motion, in a case that involves--

15

(A) a serious risk that the person will flee; or

16

(B) a serious risk that the person will obstruct or attempt to obstruct justice, or
threaten, injure, or intimidate, or attempt to threaten, injure, or intimidate, a
prospective witness or juror.

17

In other words, Sec. 3142(f) does not authorize a detention hearing whenever
the government thinks detention would be desirable, but rather limits such
hearings to the following instances:

18 upon motion of the government in a case involving a crime of violence, Sec.

1)
3142(f)(1)(A);
19 upon motion of the government in an offense where the maximum sentence is life
2)
imprisonment or death, Sec. 3142(f)(1)(B);
3) upon motion of the government in certain drug offenses, Sec. 3142(f)(1)(C);
20
21 upon motion of the government in the circumstances presented in Sec. 3142(f)(1)
4)
(D);
22 upon motion of the government or the court's own motion in a case that involves a
5)
serious risk of flight, Sec. 3142(f)(2)(A) or
23 upon motion of the government or the court's own motion in a case that involves a
6)
serious risk that the defendant will obstruct or attempt to obstruct justice or
intimidate or attempt to intimidate a witness or juror, Sec. 3142(f)(2)(B).
24

In the present case, the government invoked Sec. 3142(f)(1)(C), (f)(2)(A), and
(f)(2)(B), that is the third, fifth, and sixth instances listed above, in moving for
a detention hearing. Neither the magistrate nor court based detention on the
first two bases, that is neither found that the case involved a drug offense or a
serious risk of flight. Hence, defendant argues, the only remaining basis for a
detention hearing is Sec. 3142(f)(2)(B), but the district court did not expressly

find "a serious risk" that defendant would obstruct or attempt to obstruct justice
or attempt to intimidate a witness or juror. Rather, the court based its detention
order on dangerousness to the community, an insufficient basis by itself,
defendant argues, when a detention hearing is sought under Sec. 3142(f)(2)(B).
25

The Third Circuit was presented with a somewhat similar argument in United
States v. Himler, 797 F.2d 156 (3d Cir.1986). There, the defendant had been
charged with crimes involving the production of false identification. The
district court ordered detention on grounds of dangerousness to the community,
concluding that if the defendant were released he would commit further crimes
involving false identification. The Third Circuit reversed, concluding the statute
does not authorize "pretrial detention upon proof of danger to the community
other than from those offenses which will support a motion for detention." Id.
at 160. Quoting from legislative history, it stated that the Sec. 3142(f)
"circumstances for invoking a detention hearing in effect serve to limit the
types of cases in which detention may be ordered prior to trial.". Hence,
detention could only be ordered "upon proof of a likelihood of flight, a
threatened obstruction of justice or a danger of recidivism in one or more of the
crimes actually specified by the bail statute," the court concluded. As
defendant's offense involving false identification was not one of the offenses
listed in Sec. 3142(f)(1), as the record did not support detention on flight
grounds, and as there was no claim of obstruction of justice, detention was not
authorized, the court ruled. Danger to the community present in the likelihood
defendant would continue to commit offenses involving false identification
could be considered only in setting conditions of release, the court determined.
Id. at 160.

26

To be sure, the statute could conceivably be read more broadly than do

defendant and the Third Circuit. Section 3142(e) directs the judicial officer,
after holding a hearing pursuant to Sec. 3142(f), to find whether any conditions
will reasonably assure appearance and the safety of any person and the
community. Here, a hearing was held pursuant to Sec. 3142(f), that is, the
government invoked several of the grounds specified in Sec. 3142(f) for calling
a detention hearing. The court then determined that no conditions would ensure
the safety of the girlfriend's husband and the community. But for the omission
of the word "reasonably" before "ensure" in that portion of the court's opinion,
it can be argued that there was literal compliance with the statute since the
statute does not expressly say that once a hearing is held pursuant to Sec.
3142(f), the judicial officer, in order to direct detention, must, in addition to
making the findings called for by Sec. 3142(e), also expressly find that one of
the conditions for calling a Sec. 3142(f) detention hearing exists.

27

We believe, however, the structure of the statute and its legislative history
make it clear that Congress did not intend to authorize preventive detention
unless the judicial officer first finds that one of the Sec. 3142(f) conditions for
holding a detention hearing exists. To conclude otherwise would be to ignore
the statement in the legislative history that the "circumstances for invoking a
detention hearing in effect serve to limit the types of cases in which detention
may be ordered prior to trial," see S.Rep. No. 225, 98th Cong., 2d Sess. 20,
reprinted in 1984 U.S.Code Code & Admin.News 3182, 3203; see also United
States v. Salerno, --- U.S. ----, 107 S.Ct. 2095, 2101, 95 L.Ed.2d 697 (1987)
("The Bail Reform Act carefully limits the circumstances under which
[preventive] detention may be sought to the most serious of crimes"), and to
authorize detention in a broad range of circumstances that we do not believe
Congress envisioned. For example, it may be, as the government argues, that
defendant has shown himself ready to influence a witness to testify falsely and
otherwise to manufacture evidence against the girlfriend's husband in order to
influence the state divorce and custody proceedings in the girlfriend's favor.
Such activities may indeed constitute obstruction of justice in the state cases.
But we do not think that the preventive detention provisions of the Bail Reform
Act were meant to be invoked in order to safeguard a state domestic relations
proceeding unconnected to the federal proceeding that has given rise to
defendant's bail hearing.

28

The evidence that defendant has plotted to kill the girlfriend's husband presents
a different question. If the husband is likely to be a material witness against
defendant on the present federal charges and if there is a serious risk that
defendant will attempt to intimidate the husband if released, the statute
authorizes detention (provided no condition or combination of conditions
would reasonably assure the husband's safety, Sec. 3142(e)). Or if the district
court were to conclude from defendant's past behavior that there is a serious
risk that defendant, if released, will attempt to injure or intimidate other
prospective witnesses (and if the evidence supports said conclusion) then, too,
detention is authorized in accordance with Secs. 3142(e) and (f)(2)(B). But if
instead defendant's grudge against the husband is personal, unrelated to and
unlikely to affect proceedings on the present charges, we are unable to conclude
that the statute authorizes preventive detention.

29

In essence, we interpret the statute in the same manner as has the Third Circuit.
That is, where detention is based on dangerousness grounds, it can be ordered
only in cases involving one of the circumstances set forth in Sec. 3142(f)(1). As
the Third Circuit pointed out, the Bail Reform Act created a new type of
detention--preventive detention--to be invoked only under certain conditions.
Insofar as in the present case there is no longer any contention that any of the

subsection (f)(1) conditions were met, pre-trial detention solely on the ground
of dangerousness to another person or to the community is not authorized. To
the extent United States v. Yeaple, 605 F.Supp. 85 (M.D.Pa.1985), is
inconsistent with our views, we decline to follow it.
30

Given the above, it is essential in the present case to know what ground or
grounds were the actual basis of the district court's detention order. In common
parlance, dangerousness to the community and obstruction of justice may not
be separate and distinct categories: where there is a serious risk that a
defendant, if released, would obstruct justice or intimidate witnesses, it could,
in ordinary speech, reasonably be said that that person was a danger to the
community. Indeed, there are overtones in the district court's opinion that,
while speaking in terms of danger to the community, the court was actually
considering the risk of obstruction of justice and witness intimidation.
Defendant's apparent willingness to take extreme measures if he felt he would
not be caught and defendant's conduct with respect to the girlfriend's husband
suggested to the court that defendant "might intimidate witnesses...." In view of
our above reading of Sec. 3142(e) and (f), however, it is now necessary for the
district court to clearly specify whether detention is based, on the one hand, on
dangerousness to the community under subsection (f)(1) or, on the other, on
witness intimidation or obstruction of justice under subsection (f)(2)(B). And,
in the latter situation, a finding of the subsection (f)(2)(B) conditions is
necessary. See United States v. Acevedo-Ramos, 755 F.2d 203, 206 (1st
Cir.1985) (detention on finding serious risk of obstruction of justice). In the
present case, the court did not squarely distinguish between subsection (f)(1)
and subsection (f)(2)(B). Nor did the court expressly find, in the words of Sec.
3142(f)(2)(B), "a serious risk" of witness intimidation or obstruction of justice.
(Rather, the court found a strong suggestion that defendant "might" engage in
such behavior.) Consequently, we conclude detention should be reconsidered
and further findings made indicating whether or not there is a serious risk
defendant will engage or attempt to engage in the conduct set forth in Sec.
3142(f)(2)(B) and that no condition or combination of conditions set forth in
Sec. 3142(c) will reasonably assure the safety of any other person and the
community.

31

The case is remanded for further proceedings in light of this opinion.